Can a Florida city amend its charter by ordinance to require council candidates to designate a specific seat before the election, or does that require a referendum?

Plain-English summary

The City of Parker (in Bay County) had asked in 2010 (AGO 2010-54) whether it could amend its charter by ordinance to require council candidates to designate which council seat they sought before the election. The 2010 opinion said no: § 166.021(4), Florida Statutes, requires referendum approval for charter amendments that change "the terms of elected officers and the manner of their election."

In this 2016 follow-up, the city asked the AG to revisit that conclusion based on a charter provision the city believed had been overlooked. The 2016 opinion declined to revisit the conclusion. Even though the Municipal Home Rule Powers Act (§ 166.021) gives broad self-government authority to municipalities, that authority is statutorily limited. Section 166.021(4) explicitly excludes "the terms of elected officers and the manner of their election" from charter changes that can be made without referendum. The city's preferred reading would let an ordinance overcome that statutory limitation, which the Home Rule Powers Act does not permit.

The 2016 opinion also addressed a second question: did the prospective referendum change to the manner of election affect other charter provisions that had been "converted to ordinances" by Chapter 166? The Parker City Charter was last readopted in 1967, before Florida's home-rule restructuring. Under § 166.021(4), pre-October-1973 charter provisions that did not affect any of the listed protected areas (election manner, terms of elected officers, distribution of powers, form of government, etc.) were either repealed or converted into ordinances. Those ordinance-converted provisions are subject to repeal or modification through ordinary ordinance procedure, not referendum.

The opinion's anchor is the Florida Supreme Court's Alsop v. Pierce (1944) maxim: "When the Legislature has prescribed the mode, that mode must be observed. When the controlling law directs how a thing shall be done that is, in effect, a prohibition against its being done in any other way." Section 166.021(4) prescribes the referendum mode for changes to the manner of elections; ordinance is not an alternative.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does "manner of election" cover under § 166.021(4)?
A: At minimum, it covers candidate-seat designation requirements. The opinion treats requiring candidates to specify which council seat they seek as a change to the manner of election, requiring referendum.

Q: What can be changed by ordinance and what requires referendum?
A: Section 166.021(4) lists what requires referendum: extraterritorial powers, areas inside/outside a municipality, creation/existence of a municipality, "terms of elected officers and the manner of their election" (excluding election dates and qualifying periods), distribution of powers among elected officers, appointive board matters, form of government, and rights of municipal employees. Other charter changes can proceed by ordinary ordinance.

Q: What about pre-1973 charter provisions?
A: Provisions adopted before October 1, 1973, that did not address the protected categories were either repealed or converted into ordinances. Those converted-to-ordinance provisions can be modified by ordinary ordinance procedure.

Q: What about election dates and qualifying periods?
A: Those are expressly excluded from the referendum-required list. A city can change election dates and qualifying periods by ordinance, along with consequent changes in terms of office necessitated by those date changes.

Q: Does this rule apply to charter amendments adopted after 1973?
A: Yes. Any post-October-1973 charter amendment may only be amended in accordance with § 166.031, Florida Statutes, which sets out the referendum procedure.

Background and statutory framework

Florida's Municipal Home Rule Powers Act (Chapter 166), enacted in 1973, restructured municipal authority. Section 166.021 declared a broad grant of home rule, then enumerated the limits. Section 166.021(4) is the operative limit on charter amendment: it requires referendum approval for changes to the listed categories and provides that pre-1973 charter provisions on non-listed subjects are converted to ordinances.

Section 166.031 spells out the procedure for charter amendments by referendum. The city commission may adopt a resolution placing a proposed amendment on the ballot at the next general or special election, and the amendment takes effect only on majority approval by the electors.

The Parker City Charter was last readopted in 1967. That timing matters: any provisions that did not address the § 166.021(4) protected list were converted to ordinances. Provisions that did address the list (such as the manner of election of council members) remained as charter provisions subject only to referendum amendment.

Citations and references

Statutes:
- § 166.021, Fla. Stat. (Powers of municipalities)
- § 166.031, Fla. Stat. (Charter amendments)
- Chapter 166, Fla. Stat. (Municipalities)

Cases:
- Alsop v. Pierce, 19 So. 2d 799 (Fla. 1944)
- Dobbs v. Sea Isle Hotel, 56 So. 2d 31 (Fla. 1952)
- Thayer v. State, 335 So. 2d 815 (Fla. 1976)

Prior AG opinions:
- Op. Att'y Gen. Fla. 2010-54 (Parker City Council seat designation)
- Op. Att'y Gen. Fla. 93-23 (1993)
- Op. Att'y Gen. Fla. 88-30 (1988)
- Op. Att'y Gen. Fla. 79-80 (1979)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/elections-candidates-referendum
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8049

Original opinion text

Mr. Timothy J. Sloan
Parker City Attorney
Post Office Box 2327
Panama City, Florida 32402-2327

Dear Mr. Sloan:

Thank you for contacting the Florida Attorney General's Office with questions relating to election provisions in the charter of the City of Parker. Attorney General Bondi has asked me to respond to your letter.

You have asked two questions. The first is essentially a request to revisit Attorney General Opinion 2010-54 which was addressed to the City of Parker and discussed the same question, i.e, whether a referendum is required to approve an amendment to the city charter that would require candidates seeking election to the council to designate which council seat they seek prior to the election. That opinion bases its conclusions on the language in section 166.021(4), Florida Statutes, that "nothing in Chapter 166, Florida Statutes, is to be construed as permitting any changes in a special law or municipal charter which affect certain subject matters specifically mentioned therein, including 'the terms of elected officers and the manner of their election' without referendum approval as provided in section 166.031, Florida Statutes." (e.s.) The opinion concludes that the revisions suggested constitute a change in the manner that Parker City Council members are elected and must be accomplished by referendum.

Your letter suggests that a charter provision was overlooked in our analysis which specifically authorizes "a change in the manner of elections through ordinance." While the Municipal Home Rule Powers Act provides broad powers of self-government for municipalities, those powers are limited by statute. As section 166.021(4), Florida Statutes, states: "[N]othing in this act shall be construed to permit any changes in a . . . municipal charter which affect . . . the terms of elected officers and the manner of their election[.]" Thus, the City of Parker may not act, under the provisions of the Municipal Home Rule Powers Act, in contravention of that statutory limitation.[1]

You also ask whether the amendment by referendum to change the manner of election of city council members would affect other provisions of the charter which were converted to ordinances by Chapter 166, Florida Statutes. As is provided in section 166.021(4), Florida Statutes:

"The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly prohibited. However, nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect the exercise of extraterritorial powers or which affect an area which includes lands within and without a municipality or any changes in a special law or municipal charter which affect the creation or existence of a municipality, the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, the distribution of powers among elected officers, matters prescribed by the charter relating to appointive boards, any change in the form of government, or any rights of municipal employees, without approval by referendum of the electors as provided in s. 166.031. Any other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed." (e.s.)

Thus, the statute addresses those provisions which may not be changed without referendum.[2] Municipal charter provisions adopted prior to October 1, 1973, which did not affect the areas specified above were either repealed or converted into ordinances and, as was pointed out in Attorney General Opinion 2010-54, are subject to repeal or modification in the same manner as other ordinances. Any municipal charter provision adopted or readopted subsequent to that date may only be amended in accordance with section 166.031, Florida Statutes. You have advised us that the Parker City Charter has not been readopted since 1967 and, thus, any charter provisions which were converted into ordinances would be subject to repeal or modification as are other ordinances of the city.[3]

I trust that these informal comments will assist you in advising your client the City of Parker. This informal opinion is provided to you by the Department of Legal Affairs in an effort to be of assistance and the conclusions herein are those of the writer.

Sincerely,

Gerry Hammond
Senior Assistant Attorney General

GH/tsh

[1] It is the rule that a legislative direction as to how a thing shall be done is, in effect, a prohibition against its being done in any other way. Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944); Dobbs v. Sea Isle Hotel, 56 So. 2d 31, 342 (Fla. 1952); Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976).

[2] See Alsop v. Pierce, id., stating that "[w]hen the Legislature has prescribed the mode, that mode must be observed. When the controlling law directs how a thing shall be done that is, in effect, a prohibition against its being done in any other way."

[3] And see Ops. Att'y Gen. Fla. 93-23 (1993); 88-30 (1988); and 79-80 (1979).